Rhode Island Injury Lawyer Blog

Prisoners released from jail on probation are told that they need to “keep the peace” and “be of good behavior.” If he or she is arrested while on probation that person would be charged with the new crime but also with a second offense for violating probation. This meant an immediate trip back to prison. An additional term of time to serve would be addressed for the probation violation.

So far nothing has changed… However, in the past, the defendant would stay in prison on the probation violation charges EVEN IF the new charges were dismissed. For example, a defendant on probation for drug charges is arrested for shoplifting. He or she will be charged with shoplifting AND for violating his probation (failing to keep the peace and be of good behavior). If the shoplifting charges were dismissed, the defendant would remain in prison to serve the sentence for violating probation.

For years, defense attorneys and certain lawmakers have argued that when a case is dismissed and a person is shown not to have broken any law, then they should not be in violation of probation. This only makes sense. Unfortunately, for years the State believed that the act of getting arrested and being a suspect in a crime was sufficient to violate probation and be not “of good behavior.”

Finally, the State has reversed its view and after several revisions, Governor Carcieri accepts this as a new law. If a person is arrested for charges while on probation but those charges are subsequently dropped, he or she will not be seen as a probation violator.

Continue Reading

Three years after introduction, the Massachusetts House of Representatives, overwhelmingly voted to ban use of ATV’s by riders under the age of 14. The current State law allows riders as young as 10 to operate ATV’s which can be extremely dangerous. Across the country, 77% of all ATV related injuries and deaths involved riders younger than 14.

Under the new law riders 14-16 will only be allowed to ride ATV’s with an engine capacity under 90cc, or in a sanctioned race supervised by someone over the age of 18. While there are opponents to the measure, I would expect to see this law quickly passed. Massachusetts has had a high number of tragedies involving young children and off-road vehicles, such as ATV’s. In the last few years, Massachusetts has investigated over 300 reported accidents and 21 fatalities caused by ATV accidents.

I have previously discussed the laws surrounding ATV accidents in Massachusetts, and I have a great deal of experience in handling these types of cases. ATV accidents result in very serious injuries, and even death. It is imperative that you contact an experienced ATV accident attorney right away.

Continue Reading

While neck and back strains might be the most common injury to occur in auto accidents, many people experience injury to their knee. Knee injuries can occur in a variety of car accidents, such as rollovers, side impact, or front end accidents. If the knee strikes the door, or the dashboard,or is twisted, it can result in serious injury. Another cause of injury occurs when the driver braces for the accident by slamming on the brakes and hyperextends the knee on impact.

The most common injury is a strain or total tear of the ACL (anterior cruciate ligament) and the MCL (medial collateral ligament). A strain of either of these ligaments will cause pain, discomfort, and temporary disability that requires physical therapy. A total rupture of these ligaments is a much more serious injury that will likely require surgical repair and lengthy rehabilitation. Two less common knee injuries that occur in car accidents are tears of the meniscus (tears in the cartilage in the knee) and a tear of the PCL (posterior collateral ligament) which can result from a direct violent impact to the knee such as striking the dashboard.

In the most serious situations, accident victims can experience tears of two or more ligament tears at the same time. A tear of both the ACL and MCL will require surgery and result in a lengthy period of total disability.

Knee injuries are serious and debilitating. Even a minor strain can cause a great deal of discomfort in walking, standing, and even driving a car. This can result in total disability, extensive need for rehabilitation, and lost wages.

Continue Reading

Washington, D.C. is reporting that nearly 400 people convicted of drunk driving since 2008 may have been convicted with inaccurate breathalyzer results. Half of those convicted spent time in jail, perhaps unnecessarily. D.C. Attorney General, Peter Nickles, said that the machines were improperly calibrated by the police. The inaccurate calibration led to results that were up to 20% higher than the actual blood alcohol level. Such a mistake could have resulted in wrongful convictions or may have wrongfully earned a more severe sentence under the wrong belief that a person was highly intoxicated.

Requests for new trials, expungements, and even lawsuits against the District have already begun pouring in. Some of the verdicts will stand based on other, still useful, evidence such as police testimony or subsequent blood and urine testing. Nevertheless, other cases may need to be re-tried without the inaccurate breathalyzer results.

These machines require precise calibration and proper care and maintenance at all times in order to give an accurate blood alcohol reading. A good DUI lawyer will challenge the accuracy and validity of test results to try and remove the results from evidence. This story will add fuel to the debate that these tests too often produce inaccurate results.

Continue Reading

Posted in: DUI
Updated:

I came across an interesting lawsuit out of Texas. Apparently, the family of a deceased woman, Claudia Headley, is bringing a wrongful death lawsuit against several asbestos manufacturers after contracting mesothelioma and passing away in 2008. Mesothelioma is a rare form of cancer that is almost always caused by inhalation of asbestos fibers.

The woman did not work directly with any asbestos materials, but washed the clothes of her father, husband, and son, all of whom worked in an oil refinery. For roughly forty years, Ms. Headley suffered second hand exposure to asbestos because the asbestos dust covered her family’s clothes. It was enough exposure to cause her mesothelioma.

One difficulty that the plaintiffs will run into is showing that Ms. Headley’s death was foreseeable. Asbestos manufacturers are liable to the workers who died from breathing in their dangerous product because it was known and kept secret for decades that asbestos could cause cancer. It is a bit of a jump, however, to say that it was foreseeable that even washing the laundry of men exposed to asbestos could be sufficient to cause mesothelioma. It is a bit like a non-smoker suing a tobacco company for lung cancer caused by second hand smoke. If the defendant can prove that her death was not foreseeable, they may be able to escape liability.

It is also worth noting that it does not take direct or constant exposure to asbestos materials to develop asbestosis or mesothelioma. Even second hand or minor amounts of contact can be sufficient to contract the deadly disease.

Continue Reading

I’ve written in the past, here, and here, about how Miranda has been continually weakened over the past several decades until now it is merely a shell known best for its TV dramatization than for any actual legal protection. This week the Supreme Court might have shot it and left it for dead.

The case, Berghuis v. Thompkins, rises from Michigan. The Supreme Court ruled that a defendant has to actively invoke his right to remain silent. The defendant, Van Chester Thompkins, was read his rights and admits to understanding them. Thompkins remained silent while Michigan police interrogated him for Three Hours! Finally, one of the police asked, “Do you pray to God to forgive you for shooting that boy down?” to which Mr. Thompkins said, “yes.” This one word statement after three hours of interrogation was used against Thompkins and upheld by the Supreme Court. (I will save my dismay about using God to create guilt during an interrogation for another blog post!)

The Court believes that a suspect can not merely remain silent (even if for three hours) in order to gain the protections of Miranda, he must actually say to the police, I am invoking my right to remain silent. The Supreme Court is now saying that any person brought in for questioning may be interrogated for hours unless he or she verbalizes their request for an attorney and their desire to remain silent. In other words, you have the right to remain silent but we are going to harass you until you finally say something and it will be used against you.

In the past, the police had to prove that a defendant waived his Miranda rights in order to admit a statement. This ruling gives them power to harass and interrogate endlessly without any question as to whether a defendant has actually waived his rights.

Honestly, there is very little protection left to Miranda. In fact, more defendants are probably confused by the law than are protected by it. This is a disturbing opinion by an increasingly conservative bench. Interestingly, Justice Sotomayor gave a vehement dissent while writing for the minority (in a 5-4 decision).

Continue Reading

If you have been involved in an auto accident in Massachusetts or Rhode Island involving three or more cars or trucks it is important to contact an experienced auto accident attorney right away. For the most part, the process surrounding your personal injury claim will not be any different because multiple vehicles were involved. If you were not at fault, you can still collect money for your medical bills, lost wages, and pain and suffering. The liability decision, however, may be more difficult and will require thorough investigation on the part of your attorney.

Rhode Island maintains joint and several jurisdiction. What this means is that if you were in an accident with multiple vehicles and were not at fault you can go after either at-fault party or both. For example (hopefully an unlikely example), you driving “Car A” legally drive through a green light and “Car B” runs a red light striking you from the left and “Car C” runs a red light and strikes you from the right at the same time. Both cars B and C are at fault for your personal injuries. You have the option of going after Car B for 100% of your injury; or Car C for 100% of your injury; or go after each for 50%. This is extremely helpful if your injuries are severe and one of the drivers only has the state minimum of auto insurance. Also if Car C has a 300k policy and Car B has a 25k policy, then you can go after Car C for everything.

Unfortunately, unlike the above scenario, multiple vehicle accidents can be often difficult to determine fault. For this reason, you need to involve an experienced auto accident attorney from the onset to investigate liability by: looking for witnesses, taking pictures, hiring a reconstructionist (if necessary), examining the scene of the accident, etc.

An accident involving multiple cars and trucks also increases the risks of sustaining serious injuries. You may be struck two or more times and from different directions. This will cause your body to shift and jolt in many direction with tremendous force causing severe muscle strain. A more serious impact can also result in fractures, head injuries, and even death.

Continue Reading

Almost every week I receive a phone call from a person who is unhappy with their personal injury attorney and want to know if they can fire their attorney. They also wonder what will happen if they fire their attorney. Here are some things to consider.

If you are involved in an auto accident, slip and fall, motorcycle accident, or any other personal injury case, you can fire your lawyer at ANY time. If your lawyer was working on a contingent fee (taking 33% of the settlement) he or she has a right to be paid for the work they have already completed prior to settlement. The attorney will probably place a lien on the file ensuring they are paid for the work they have done. Usually, this is no big deal. The next attorney will pay the old attorney’s lien out of the fee received in the case. That means that you still only pay 33% of your settlement or jury verdict. Hiring a different attorney will almost always cost no additional money!

My Attorney Never Returns My Calls

The most common reason I hear is: My car accident attorney never returns my calls or tells me what is going on with my case. Recently, I heard from a woman who left messages for her attorney for 4 months without a phone call. He did not finally call her until she threatened to fire him and find another attorney. This is unacceptable. Your attorney is going to be paid very well for his efforts and the least he or she can do is return your phone call.

An Extreme Example

I recently took on a legal malpractice claim because the previous attorney failed to work the case and file a lawsuit within the statute of limitations. The client was seriously injured following a motorcycle accident, but now is in danger of receiving no money for his pain and suffering and lost wages. He called his attorney every month for three years and could never actually get his attorney on the phone. The secretary constantly told the client that the case was “under control” and being handled. Unfortunately, the client found out too late that his motorcycle claim was not “under control”.

How I Choose To Do Business

This is not the way that I choose to do business. Not only do I handle all of my cases personally and answer all calls within 24 hours, my clients have my cell phone number! I am always available to my clients. I handle cases quickly and aggressively. If settlement is appropriate (sometimes a lawsuit is more appropriate), I will work fast to get a demand out soon after your medical treatment ends and begin working with the insurance company to obtain a great settlement.

The majority of my colleagues are talented attorneys who work very hard to obtain great results for their clients, and I am not advocating or recommending that you bounce from one attorney to another. What I am suggesting is: a) do your homework before hiring an attorney to see what type of reputation he or she has and whether there will be an open chain of communication; b) Consider hiring another attorney if your previous attorney never returns your calls or informs you of what is going on with your case.

Continue Reading

The story begins in the 30’s and 40’s. Despite the known harmful side effects of lead based paints, manufacturers continued to produce the product AND advertise that it was a safe kid friendly product. Finally, the truth came out and the United States banned lead based paint in 1978. The story is not unlike the litigation surrounding cigarettes and asbestos.

Paint manufacturers made billions and children across the country were placed at serious risk from lead based paint. In fact, many children today who live in pre-1978 housing remain at risk. Rhode Island was hit particularly hard and many children were poisoned. Our AG at the time, Sheldon Whitehouse, hired outside plaintiff counsel to sue the paint manufacturers to absorb the massive costs that lead based paint placed on the State due to increased health care costs and housing costs. The state won…billions!

The money was to be used to remove lead based paint from hundreds of thousands of Rhode Island homes. Despite this important ruling which sent a clear message to corporations placing profits before safety, the Rhode Island Supreme Court overturned the jury verdict.

The paint manufacturers, seemingly convinced of their own righteousness and believing the lawsuit to have been frivolous, sought to be reimbursed for all of their trial costs. Yesterday, Judge Silverstein ruled that the defendants were not entitled to defense costs because the case was neither frivolous nor in bad faith. Furthermore, forcing the state to pay the defense costs would deter the State from bringing future litigation intended to protect the public welfare.

I’m gonna take everyone back to my first day at Boston College Law School and torts class because it is important to understand how a determination of fault will affect your ability to collect damages following an accident. These rules of comparative liability are most commonly used in auto accident cases but may also apply to slip and fall, construction accidents, motorcycle accidents, etc. Interestingly, Rhode Island and Massachusetts have very different laws in this regard.

This article is not concerned with rear-end accidents because in rear-end accidents the person in the back is 100% at fault with very few exceptions. This article is concerned with auto accidents at intersections, or in which one party is turning in front of the other. In these cases, one person might be the majority at fault but not 100% at fault for the accident.

For instance, Driver “A” is turning left out of a parking lot and does not see Driver “B” coming from the left. Driver “B” is speeding and strikes Driver “A” very hard. Driver “A” is the majority at fault because he was turning left and failed to yield the right of way to Driver “B”. Driver “B”, however, was speeding and caused a potentially minor accident to become a major accident.

In this above scenario (assuming you followed me) the insurance company, or jury, might find Driver “A” 80% at fault (for failing to yield the right of way) and Driver “B” 20% at fault for speeding. This is where comparative liability laws become important.

In Rhode Island, Driver “A”, even though majority at fault, would still be able to collect 20% from Driver “B” for damages. This includes property damage to his vehicle and damages for personal injury. If the injury sustained is very serious, or fatal, 20% may still be a lot of money to help the injured person get back on their feet.

In Massachusetts, which adheres to a modified comparative negligence system, Driver “A” would not be able to collect anything. This is because, in Massachusetts, a driver who is majority at fault can not collect ANY damages. In Massachusetts, a driver must be 50% or less at fault in order to recover any damages.

It is also worth noting that these laws do not apply to passengers. Because passengers are not behind the wheel and do not contribute to accidents, they are not punished by the fact that “their driver” was at fault for the accident. Passengers can collect all of their damages from either at-fault driver.

Continue Reading